Nicholas v. Fidelity & Deposit Co. of Maryland

PER CURIAM. This matter comes before us on motion to dismiss the appeal. The only ground presented for dismissal is that the appeal “is utterly frivolous.” In Succession of Damico, 161 La. 725 , 109 So. 402, 403 , the Supreme Court, in refusing to dismiss an appeal on the ground that it had not been seriously taken, said: “ * * * in all cases where an appeal lies, such appeal must be granted, and cannot be denied because it is said to be frivolous, or taken merely for delay, or only ‘to abuse the right of appeal.’ State ex rel. Duffard v. Recorder, 45 La. Ann. 1299 , 14 So. 66 . “The remedy for an alleged frivolous appeal is, therefore, not the dismissal of the appeal, but the affirmance of the judgment appealed from when the appeal is heard in due course and actually found to be without merit.” In Succession of Pavelka, 161 La. 728 , 109 So. 403 , we find the following: “ * * * It appears that the grounds for dismissing the appeal are that the appeal is frivolous, and was taken for delay and to harass the appellee. A motion to dismiss an appeal cannot be based upon the ground that the appeal is frivolous. This is so, because to determine whether the appeal is frivolous requires an examination into, and a decision on, the merits of the appeal. Such examination and decision can be made properly only after the appeal has been heard, in due course, on its merits.” See, also, Reiners v. St. Ceran, 27 La. Ann. 112 ; Baker v. Frellsen, 32 La. Ann. 822 ; Succession of Baumgarden, 35 La. Ann. 675 ; Thomas v. Guilbeau, 35 La. Ann. 927 ; Pasley v. McConnell, 39 La. Ann. 1097 , 3 So. 484 , 485; John Barkley & Co. v. Ham & Seymour, 157 La. 874 , 103 So. 245 ; Keen & Woolf v. Caldwell, 161 La. 150 , 108 So. 318 ; Louque v. Hercules Oil Co., 170 La. 355 , 127 So. 866 ; Cochran v. Louisiana State Board of Education, 168 La. 1030 , 123 So. 664 , judgment affirmed 281 U. S. 370 , 50 S. Ct. 335 , 74 L. Ed. 913 ; Borden v. Louisiana State Board of Education, 168 La. 1005 , 123 So. 655 , 67 A. L. R. 1183; Bertoniere v. Savoure, 163 La. 1073 , 113 So. 459 ; National City Bank of Chicago v. Barringer, 139 La. 630 , 71 So. 894 ; Code Prac. art 907. The motion to dismiss the appeal is denied. Motion to dismiss appeal denied.